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Tennessee Rules of Criminal Procedure, Rule 16
RULE 16. DISCOVERY AND INSPECTION
(a) Disclosure of Evidence by the State.
(1) Information Subject to Disclosure.
(A) Statement of Defendant. Upon request of a defendant the State shall permit the defendant to inspect and copy or photograph: any relevant written or recorded statements made by the defendant, or copies thereof, within the possession, custody or control of the State, the existence of which is known, or by the exercise of due diligence may become known, to the district attorney general; the substance of any oral statement which the State intends to offer in evidence at the trial made by the defendant whether before or after arrest in response to interrogations by any person then known to the defendant to be a law enforcement officer; and recorded testimony of the defendant before a grand jury which relates to the offense charged. Where the defendant is a corporation, limited liability company, limited liability partnership, partnership, association or labor union, the court may grant the defendant, upon its motion, discovery of relevant recorded testimony of any witness before a grand jury who (1) was, at the time of the testimony, so situated as an officer or employee as to have been able legally to bind the defendant in respect to conduct constituting the offense, or (2) was, at the time of the offense, personally involved in the alleged conduct constituting the offense and so situated as an officer or employee as to have been able legally to bind the defendant in respect to the alleged conduct in which the witness was involved. Upon a determination by the State to place co-defendants on trial jointly, the State shall promptly furnish each defendant who has moved for discovery under this subdivision with all information discoverable under this subdivision as to each co-defendant.
(B) Defendant's Prior Record. Upon request of the defendant, the State shall furnish to the defendant such copy of the defendant's prior criminal record, if any, as is within the possession, custody or control of the State, the existence of which is known, or by the exercise of due diligence may become known, to the district attorney general.
(C) Documents and Tangible Objects. Upon request of the defendant, the State shall permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody or control of the State, and which are material to the preparation of the defendant's defense or are intended for use by the State as evidence in chief at the trial, or were obtained from or belong to the defendant.
(D) Reports of Examinations and Tests. Upon request of a defendant the State shall permit the defendant to inspect and copy or photograph any results or reports of physical or mental examinations, and of scientific tests or experiments, or copies thereof, which are within the possession, custody or control of the State, the existence of which is known, or by the exercise of due diligence may become known, to the district attorney general and which are material to the preparation of the defense or are intended for use by the State as evidence in chief at the trial.
(2) Information Not Subject to Disclosure. Except as provided in paragraphs (A), (B), and (D) of subdivision (a)(1), this rule does not authorize the discovery or inspection of reports, memoranda, or other internal State documents made by the district attorney general or other State agents or law enforcement officers in connection with the investigation or prosecution of the case, or of statements made by State Witnesses or prospective State Witnesses.
(3) Grand Jury Transcripts. Except as provided in Rule 6 and subdivision (a)(1)(A) of this rule, these rules do not relate to discovery or inspection of recorded proceedings of a grand jury.
(4) Failure to Call Witness. The mere fact that a witness' name is on a list furnished under this rule shall not be grounds for comment upon a failure to call the witness.
(b) Disclosure of Evidence by the Defendant.
(1) Information Subject to Disclosure.
(A) Documents and Tangible Objects. If the defendant requests disclosure under subdivision (a)(1)(C) or (D) of this rule, upon compliance with such request by the State, the defendant, on request of the State, shall permit the State to inspect and copy or photograph books, papers, documents, photographs, tangible objects, or copies or portions thereof, which are within the possession, custody, or control of the defendant and which the defendant intends to introduce as evidence in chief at the trial.
(B) Reports of Examination and Tests. If the defendant requests disclosure under subdivision (a)(1)(C) or (D) of this rule, upon compliance with such request by the State, the defendant, on request of the State, shall permit the State to inspect and copy or photograph any results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the particular case, or copies thereof, within the possession or control of the defendant which the defendant intends to introduce as evidence in chief at the trial or which were prepared by a witness whom the defendant intends to call at the trial when the results or reports relate to the witness's testimony.
(2) Information Not Subject to Disclosure. Except as to scientific or medical reports, this subdivision does not authorize the discovery or inspection of reports, memoranda, or other internal defense documents made by the defendant, or the defendant's attorneys or agents in connection with the investigation or defense of the case, or of statements made by the defendant, or by State or defense witnesses, or by prospective State or defense witnesses, to the defendant, the defendant's agents or attorneys.
(3) Failure to Call Witness. The mere fact that a witness' name is on a list furnished under this rule shall not be grounds for comment upon a failure to call a witness.
(c) Continuing Duty to Disclose. If, prior to or during trial, a party discovers additional evidence or material previously requested or ordered, which is subject to discovery or inspection under this rule, the party shall promptly notify the other party or the other party's attorney or the court of the existence of the additional evidence or material.
(1) Protective and Modifying Orders. Upon a sufficient showing the court may at any time order that the discovery or inspection be denied, restricted, or deferred, or make such other order as is appropriate. Upon motion by a party, the court may permit the party to make such showing, in whole or in part, in the form of a written statement to be inspected by the judge alone. If the court enters an order granting relief following such an ex parte showing, the entire text of the party's statement shall be sealed and preserved in the records of the court to be made available to the reviewing courts in the event of an appeal.
(2) Failure to Comply With a Request. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing evidence not disclosed, or it may enter such other order as it deems just under the circumstances. The court may specify the time, place, and manner of making the discovery and inspection and may prescribe such terms and conditions as are just.
(e) Alibi Witnesses. Discovery of alibi witnesses is governed by Rule 12.1.
[Amended effective August 1, 1979; August 22, 1984; July 1, 1995.]
This rule substantially conforms to the new federal discovery Rule 16, and was adopted by the Commission as a middle-ground reciprocal rule.
The reference in (a)(1)(A) to the discovery of recorded grand jury testimony of a defendant will not have the same utility in State court, because under State procedure a prospective defendant seldom is required to testify before a grand jury. The Commission left this language in the rule because it might be useful in connection with the operation of Rule 6(j)(6) and (7), the immunity provisions. Grand jury proceedings are not presently regularly recorded, but could be.
The rule is always triggered by the defendant; where the defendant requests disclosure, the reciprocal rights of the State come into play.
The Commission agrees that the defendant shall still receive advance notice of the names of the State's witnesses, as is now provided by T.C.A. §§40-1708, 40-2407.
It is intended that section (a)(1)(C), as it relates to the inspection of tangible objects, shall mean that in controlled substance cases the defendant upon request must be furnished a sufficient quantity of the substance to permit a scientific examination for identification purposes. The defendant has this right under existing case law. The Commission considers that a meaningful "inspection" of a controlled substance means a scientific testing of a sample thereof. Results are subject to discovery by the State under section (b)(1)(B).
The continuing duty to disclose set out in section (c), and the flexibility of the court's regulation of discovery as set out in section (d), are deemed to be very important.
Rules 12.1 and 12.2, although not technically discovery rules, are closely related.
While we have heretofore had a substantial body of statutory and case law providing for discovery by the defendant, this rule for the first time provides the State with reciprocal discovery.
This rule is not the exclusive procedure for obtaining discovery, since discovery required by due process is not expressly structured into the rule. For example, for the rule as to the State's duty to disclose exculpatory evidence, see Brady v. Maryland, 373 U.S. 83 (1963). The voluntary disclosure of evidence not within the ambit of this rule is encouraged by the Commission. Under Section (a)(1)(A) the Commission originally provided that the defendant might obtain all of his or her statements, whether made to a law enforcement official or to a lay witness. However, this was amended to conform to the federal rule, being limited by the language, "in response to interrogation by any person then known to the defendant to be a law enforcement officer."
The statements of a co-defendant discoverable by the co-defendant are likewise made discoverable by the defendant, if the co-defendant and the defendant are scheduled to be tried jointly. Such statements of a co-defendant may be reviewed to determine whether or not a severance under Rule 14(c) need be sought.
The procedure provided in Rule 16(a)(1)(E) has been amended from its original wording, so as to conform to T.C.A. §40-2446. It is similar to the federal Jencks Act (18 U.S.C. s 3500), but broader.
This rule allows the defendant and the State to request a witness's statement from the presenting adverse party after the witness has testified on direct examination. Although it is technically a discovery device, its most important function is to promote the integrity of the fact-finding process, and is related to the due process requirements of Brady and its progeny. The Commission deliberately did not incorporate that provision of subdivision (e)(3) of the Jencks Act, which applies to statements of witnesses before a grand jury, and such statements are not meant to be obtainable hereunder simply because a grand jury witness testifies for the State. Such statements may only be obtained under the limited provisions of existing law now embodied in Rule 6(k)(2).
Comment to 1984 Amendment
Rule 16 is amended by deleting sections (a)(1)(E) and (a)(1)(F). These important sections deal with the production of witness statements at trial. Known commonly as Jencks material (18 U.S.C. s 3500), these matters are now covered by new Rule 26.2. The transfer of these sections to a new rule is logical since Rule 16 deals primarily with pretrial discovery. Production of witness statements as referred to in these sections of Rule 16 is more properly a trial matter and not a pretrial provision.
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